OSHA recently released its final rule implementing the whistleblower provisions of the Consumer Financial Protection Act of 2010 (“CFPA”). The following are the key features of the rule:
On January 28, 2016, OSHA issued a revised Whistleblower Investigations Manual (“Manual”) outlining procedures for the handling of retaliation complaints under the various whistleblower statutes that OSHA oversees. Chapter 3 of the Manual, titled “Conduct of the Investigation,” states that the burden of proof to be applied by investigators is “whether there is a reasonable cause to believe that a violation occurred.” Notably, the revision to the Manual is consistent with OSHA’s May 2015 Guidance Memorandum that first sought to clarify the standard applicable to whistleblower investigations.
According to figures recently released by OSHA, there has been a general increase in the number of whistleblower cases filed in fiscal year 2015 (FY 2015), in comparison to the number of cases filed in FY 2014. Here are some of the key findings from OSHA’s FY 2015 figures:
A recent audit conducted by Inspector General (OIG) concluded that the training provided to OSHA whistleblower complaint investigators could be improved in material respects (we previously blogged about the OIG’s audit here). It found that the absence of an official training directive combined with complex statutes, policies and procedures created an environment where training was lacking.
On September 30, 2015, the U.S. Department of Labor’s Office of the Inspector General (OIG) published the findings of its audit of OSHA’s Whistleblower Protection Programs (Whistleblower Programs). The audit focused on (1) determining what improvements have been made to the Whistleblower Programs, and (2) what improvements still need to be made. Though the report identified opportunities for improvement, it shows—when compared against prior reports—that OSHA’s administration of the Whistleblower Programs has improved and is on a positive trajectory.
On May 21, 2015, OSHA—which has responsibility for investigating and enforcement under 22 whistleblower retaliation statutes—released an updated edition of its Whistleblower Investigations Manual (the Manual), the first such update since September 2011. The new edition provides additional guidance to investigators on a variety of issues, with the majority of changes related to potentially available damages and settlement agreements.
The Directorate of Whistleblower Protection Programs recently issued a guidance memorandum titled “Clarification of the Investigative Standard for OSHA Whistleblower Investigations,” for the apparent purpose of clarifying the standards for its whistleblower investigations. A review of this memorandum provides employers with insight as to the standard OSHA uses to determine whether a merits finding is in order.
Please join us for a webinar with heads of the SEC and OSHA whistleblower programs and a prominent plaintiff-side whistleblower attorney, titled: Whistleblower Reward and Retaliation Claims: Current Developments.
Register here: REGISTER
Our distinguished panel will include:
Sean X. McKessy – Chief, Securities and Exchange Commission Office of the Whistleblower
Anthony Rosa – Department of Labor, Occupational Safety & Health Administration, Assistant Regional Administrator for OSHA Whistleblower Protection Programs
Steven J. Pearlman – Partner and Co-Head of Proskauer’s Whistleblowing & Retaliation Group
Jason Zuckerman – Partner, Zuckerman Law
On March 5, 2015, OSHA issued a long-awaited Final Rule regarding SOX whistleblower procedures and related matters. The new Final Rule will replace the Interim Final Rule enacted in 2011, after Dodd-Frank amended SOX. The Final Rule largely follows the Interim Final Rule, even though commenters expressed a range of serious concerns. One key revision that was implemented in the Final Rule based on response from commenters was a procedure requiring each party’s filings to be shared with the other party.
Since the enactment of Dodd-Frank in 2010, the number of whistleblower complaints filed under the Consumer Financial Protection Act (“CFPA”) has risen significantly while the number of SOX complaints filed with OSHA has largely declined. According to data provided by OSHA, the total number of whistleblower complaints has generally increased over the past ten years. This overall trend is not surprising in light of the greater publicity around whistleblowers in the wake of the passage of Dodd-Frank, employee-favorable rulings by the DOL, and pro-employee rulings by many courts.